Art. 1 of the Federal Constitution (“FC”) elevates the social values of work and free enterprise as foundations of the Brazilian Federative Republic. For such foundations to take effect and produce their effects, they must be set forth in the constitution, in order to provide for competition, as in art. 170 of the Federal Constitution, which provides, among others, on the subject matter of this chapter, i.e., Free Competition.
Free Competition is a constitutional principle governed by art. 170, item IV of the Federal Constitution, which aims to repress “the abuse of economic power aimed at market domination, elimination of competition, and arbitrary increase in profits”. Therefore, it is the duty of the State to ensure the prevention/repression of abusive practices, carried out by market players with a dominant position, when they bring harmful effects to free competition.
Therefore, the antitrust system is dedicated to combating practices that are harmful to competition, notably according to four aspects:
- antitrust conspiracies, which aim to restrain competition;
- abuse of dominant position, actions of a monopolizing company or with sufficient market power to affect competition;
- mergers, corporate transactions such as mergers and acquisitions that may affect competition and, therefore, consumer well-being; and
- government initiatives limiting competition and government actions restricting or distorting competition.
Law No. 4.137/1962 – the first Brazilian Antitrust Law – was strongly influenced by US rules and was in force for almost thirty (30) years. However, application thereof was somewhat scarce because the institutional structure created by it was practically inoperative.
Subsequently, Law No. 8.158/1991 came into effect, which remained in force for a short period, until the enactment of Law No. 8.884/1994. The latter gave the Administrative Council for Economic Defense – CADE, the Brazilian Antitrust Agency, a new structure, transforming it into a federal autonomous government agency linked to the Ministry of Justice, with legal personality and adjudicating function. This provided CADE with greater autonomy and credibility if compared to the previous law. In addition, Law No. 8.884/1994 also consolidated antitrust protection as one of the pillars of the Brazilian economy.
However, given some inefficiencies associated with the existence of overlapping agencies, as well as discussions about the requirements for reporting transactions, among others, it became urgent to discuss amendments to the law, which resulted in its complete reform.
Finally, in May 2012, Law No. 12.529/2011, the current Brazilian Antitrust Law, entered into force, establishing a new structure for the Brazilian Antitrust System, allowing for more effective action by CADE and introducing the prior control system for transactions. Upon enactment of the new Law, the antitrust policy in Brazil changed significantly.
In addition to structuring the Brazilian Antitrust System – SBDC, said law also provides for the “prevention and repression of antitrust violations, guided by the constitutional dictates of freedom of initiative, free competition, social function of property, consumer defense, and repression of the abuse of economic power”, as established in its art. 1.
As per the sole paragraph of the aforementioned article, the “collectivity is the holder of the legal assets protected by this Law”.
27.2. Brazilian Antitrust System – SBDC
Law No. 12.529/2011 structures the so-called Brazilian Antitrust System (“SBDC”), formed by (i) the Administrative Council for Economic Defense (CADE) and the current (ii) Office for the Promotion of Productivity and Antitrust Advocacy (Seprac), pursuant to its art. 2, linked to the Ministry of Finance, which succeeded the former Economic Monitoring Office (“SEAE”), each with different functions, as further detailed below.
27.2.1. Administrative Council for Economic Defense – CADE
CADE was created with Law No. 4.137/1962, according to its art. 8. Back then, it was a huge antitrust advance in Brazil, since it allowed access to a highly technical administrative body in the field of Antitrust Law, given its specialization.
The Antitrust Law, moreover, provides for both the prevention and the repression of antitrust violations, so that CADE acts on two main fronts: one of a preventive nature, focused on the control and approval of mergers; and another of a repressive nature, through the repression of antitrust conduct that constitutes an antitrust violation.
However, CADE also has a third function: the “educational function”, the purpose of which is to disseminate the antitrust culture, also called advocacy, through activities to instruct the public about its performance and behaviors that can characterize antitrust violations.
CADE is the main body responsible for the protection of free competition in Brazil, with authority for fact-finding in administrative cases related to antitrust violations, as well as for the analysis of mergers (such authority belonged to the former SDE –Economic Law Office and SEAE –Economic Monitoring Office, under the aegis of Law No. 8.884/1994).
Currently, CADE is made up of the following bodies, pursuant to art. 5 of said Law: (i) Administrative Court for Economic Defense; (ii) General Superintendence; and (iii) Department of Economic Studies.
126.96.36.199. Administrative Court for Economic Defense
The CADE Court is the highest authority, being an adjudicating body, pursuant to the provisions of art. 6 of the Antitrust Law, composed of one (1) President and six (6) Councilors, with a term of office of 4 years, appointed by the President of the Republic, after being approved by the Federal Senate, reappointment being prohibited.
In summary, the Administrative Court is responsible, among others, for deciding on the following:
- decide on the existence of an antitrust violation and impose the penalties provided for by law;
- decide administrative proceedings related to conduct control, for the imposition of administrative sanctions;
- consider appeals against preventive measures adopted by the Reporting Councilor or by the General Superintendence;
- analyze the terms of consent decrees and of merger control settlements.
- decide on mergers that have been the subject of a recommendation for denial or restriction by the General Superintendence, or summoned by one of its Councilors, for trial.
188.8.131.52. CADE’s General Superintendence – GS
CADE’s General Superintendence (“General Superintendence”), in turn, is composed of a General Superintendent, with a two-year term of office, which may be renewed only once, and by two Deputy Superintendents. The General Superintendent is appointed by the President of the Republic, after approval by the Federal Senate, while the Deputy Superintendents are appointed by the General Superintendent.
The role of the General Superintendence is to investigate and produce evidence, having the following main duties: (i) institution, fact-finding, and issuance of opinions in proceedings to investigate antitrust violations; (ii) fact-finding and issuance of opinions in mergers; and (iii) proposing settlements and preventive measures.
184.108.40.206. Department of Economic Studies – DEE
The DEE is headed by a Chief Economist, who is jointly appointed by the General Superintendent and the President of CADE, having as main duties (i) advising CADE on mainly economic matters, preparing studies and/or opinions on economic matters, on its own initiative or at the request of the CADE Court or the General Superintendence, dealing with mergers and antitrust violations; and (ii) preparing studies to ensure CADE’s technical and scientific updating.
27.2.2. Office for the Promotion of Productivity and Antitrust Advocacy – SEPRAC
The Office for the Promotion of Productivity and Antitrust Advocacy (“SEPRAC”), successor to the former Economic Monitoring Office – SEAE, is responsible for the so-called “antitrust advocacy” before government agencies and the society.
SEPRAC is responsible for promoting free competition by preparing studies that analyze, from a competition perspective, public policies, self-regulations, and normative acts of general interest to economic agents, consumers, or users of services.
In addition to intervening as amicus curiae in administrative and judicial proceedings, most of the time, SEPRAC issues an opinion on legislative proposals that are processed in the National Congress; on propositions of regulatory agencies; and on assessments requested by CADE, by the Foreign Trade Chamber, or by forums in which the Ministry of Finance participates.
27.3. CADE’s Functions
CADE basically performs three main functions, namely: preventive, repressive, and educational.
Preventive Control corresponds to the analysis and decisions in mergers between companies, which may harm free competition (“Mergers” – more detailed in Section 27.4, below).
Repressive Control corresponds to the analysis and trial of antitrust violations, which are set forth in art. 36 et seq. of Law No. 12.529/2011 and CADE’s Internal Rules. Paragraph 3, item I of the aforementioned article provides an illustrative, and not exhaustive, list of conducts that may be harmful to competition, such as cartels, tie-in sales, predatory prices, exclusivity agreements, among others.
The Educational Role, in turn, focuses on the dissemination of the culture of free competition, notably in the development of antitrust policy, as a way of implementing public policies, through partnerships with institutions and government agencies, resulting in the consolidation of concepts, growing academic interest in the area, dissemination of competition policy within the society, and technical improvement of decisions.
As mentioned, the Antitrust Law provides, in articles 89 to 91 of Law No. 12.529/2011, on the so-called control of structures, through the analysis of mergers. It is a concept that is related to the increase of economic power, in the market, by one or more players, which the legal literature defines as “increase of wealth in a few hands”1.
Article 90 of the Antitrust Law does not define merger, although it presents events in which a merger is carried out, as listed below, except in cases intended for competitive biddings held by the direct and indirect government and the contracts resulting therefrom (see art. 90, sole paragraph):
- two (2) or more previously independent companies merge;
- one (1) or more companies acquire, directly or indirectly, by purchase or exchange of shares, units of capital, bonds or securities convertible into shares, or assets, whether tangible or intangible, by contract or by any other means or form, the control or parts of one or other companies;
- one (1) or more companies merge another or other companies; or
- two (2) or more companies enter into an associative, consortium, or joint venture agreement.
The events described in items I and III above are the typical corporate merger and acquisition transactions, also known as M&A transactions, involving spin-offs and mergers, as defined in the Corporation Law (Law No. 6.404/76).
The event outlined in item II, on the other hand, is somewhat broad, involving both the acquisition of equity interests and securities, as well as tangible or intangible assets. Please note that there are still no rules that delimit the exact scope of item II more specifically.
Thus, the aforementioned item, ipsis literalis, does not make it clear which would be the assets that would give rise to mandatory communication of the merger before CADE. As a result, CADE has been analyzing mergers as diverse as those involving, for example, the purchase and sale of forestry assets, intellectual property rights, real estate or property assets, production lines, mining rights, communication towers, client portfolios, vehicles, among many other assets. In most of these cases analyzed, although the parties were somewhat conservative in submitting the transactions to CADE’s analysis, CADE ratified, in several decisions, its understanding that the submission of such acts would be mandatory.
1DA FONSECA, João Bosco Leopoldino. Direito Econômico. 9th ed., Rio de Janeiro: Forense, V.1., p. 71
Item IV describes the need for mandatory submission of associative, consortium, or joint venture agreements.
Still with regard to mergers, we note that there are mergers classified as horizontal, vertical, and conglomerate, for purposes of analysis. In summary, the following definitions apply:
- Horizontal Mergers: are those that occur between companies at the same level of the production chain, with companies being direct competitors.
- Vertical Mergers: are those that occur at different levels of a common production chain.
- Conglomerate Mergers: are those in which there is a union between companies that, although not necessarily having similar or identical products or services, or operating in similar or identical markets, have a conglomerate relationship.
Finally, the transactions listed above must be submitted to CADE’s prior analysis. Article 88 of the Antitrust Law establishes that the parties involved in the transaction shall submit to CADE mergers in which, cumulatively, certain revenue criteria are met in relation to the groups involved in the transaction. The amounts are those set out in Joint Ministerial Ordinance No. 994/2012, namely:
- at least one of the groups involved in the transaction has recorded, in the last balance sheet, annual gross revenue or total business volume in Brazil, in the year prior to the transaction, equivalent to or greater than seven hundred fifty million Reais (R$750,000,000.00); and
- at least one other group involved in the transaction has registered, in the last balance sheet, annual gross revenue or total business volume in Brazil, in the year prior to the transaction, equivalent to or greater than seventy-five million Reais (R$75,000,000.00).
Accordingly, transactions that are subject to mandatory notification to CADE cannot be consummated until CADE issues a final decision. Consummation of these acts, wholly or in part, without CADE’s approval results in the practice known as gun jumping, as further detailed in Section 27.6 below.
27.5. Prior Notification System
Law No. 12.529/2011 introduced the system of prior analysis of mergers, which replaced the former regime of a posteriori submission in Brazil, basically consisting of the obligation that a notifiable transaction in accordance with the definition of merger must be submitted to CADE’s analysis and approval prior to its consummation.
Under the old system, a merger could be notified to CADE a posteriori, within fifteen business days after it was consummated.
The new prior notification system aims to avoid irreparable damage to the market and consumers, by ensuring that market conditions are preserved while the SBDC analysis is carried out.
27.6. Gun Jumping
With the new system of prior control of mergers introduced by Law No. 12.529/11, the so-called gun jumping emerged, originating from the U.S. economic law, which consists of premature consummation of the deal, wholly or in part, by the parties, without CADE having authorized it, in violation of the prior notification regime.
Prior consummation is a complex topic that demands attention, as even the prior exchange of competitively sensitive information, or the advance payment of part of the contractual amounts, or down payment at levels above a certain percentage of the contract price, can be understood as prior consummation of the merger, giving rise to these penalties.
It is in this sense that art. 88, paragraph 4 of the Antitrust Law provides that “until the final decision on the transaction is rendered, the conditions of competition between the companies involved shall be preserved, under penalty of imposition of the sanctions provided for in paragraph 3 of this article”.
Therefore, the company that incurs gun jumping shall be subject to the payment of fines that can range from R$60 thousand to R$60 million, in addition to the possible annulment of the acts carried out by the parties before obtaining approval from CADE and institution of an administrative proceeding to investigate possible antitrust violations.
As a consequence, companies subject to a notifiable transaction shall keep their physical structures and competitive conditions unchanged until CADE’s final decision and cannot exchange sensitive information that is not strictly necessary for execution of the formal instrument, before the final decision is issued by CADE.
CADE’S Resolution No. 24 of July 8, 2019, establishes the procedures that shall be observed by the antitrust authorities in the analysis of the practice of gun jumping, and even the sentencing guidelines criteria with respect to the applicable fine.
27.7. Merger Notification Fee
As for the costs, the persons subject to the administrative power of the State shall pay a Procedural Fee of R$85,000.00, currently in effect, when notifying a transaction to the SBDC, pursuant to article 23 of Law No. 12.529/2011.
27.8. Analysis of Mergers
Initially, with regard to the Analysis of Mergers, the law provides for processing under (i) the summary proceeding, which is faster, since it grants a period of thirty (30) days for CADE’s General Superintendence (GS) to issue its opinion on the merger under consideration2, as of the filing of the petition or amendment; or (ii) under the ordinary proceeding, which demands more information and is more complex. For the latter, the law provides for a period of consideration by CADE of up to two hundred and forty (240) days, pursuant to art. 88, paragraph 2 of the Antitrust Law, which may reach up to three hundred and thirty (330) days, considering appeals and extensions.
The notification of requests for approval of mergers under the ordinary proceeding shall be accompanied by the documents and information listed in Exhibit I to Resolution No. 02 of May 29, 2012, as amended by Resolution No. 09 of October 1st, 2014.
Resolution No. 02 also provides for a form to be completed by the parties for notifiable transactions in accordance with the summary proceeding (Exhibit II). CADE shall use the summary proceeding in cases where the transactions have a smaller competitive impact, as they are considered simple, whose decisions are usually issued in less than thirty (30) days as from the filing date.
The notification shall be submitted, whenever possible, jointly by the parties to the transaction, which shall immediately report any subsequent changes to the data contained in the initial request.
Once the supplementary fact-finding is completed, the General Superintendence shall comment on satisfactory fulfillment thereof, receiving it as suitable for analysis on the merits or determining that it be redone, if incomplete. In the analysis on the merits, the General Superintendence may issue an opinion, which may follow three different directions of recommendation:
- approval of the transaction, without any restrictions;
- approval of the transaction, conditional upon structural or behavioral restrictions recommended by the General Superintendence, such as, but not limited to: divestment of assets, assumption of access obligations and non-discrimination of competitors, among other antitrust remedies;
- total “denial” of the transaction (veto).
Furthermore, if the merger is approved without restrictions, in accordance with the opinion of the General Superintendence, the Administrative Court may, at the request of one of its Councilors and by means of a reasoned decision, refer the case to CADE’s Court itself, so that a detailed analysis can be carried out by the Court, and the Councilor who summons it shall be deemed the Reporting Councilor.
In this case, the Reporting Councilor shall render a decision determining the inclusion of the case on the trial docket, if deemed sufficiently supported by evidence, or shall determine that supplementary fact-finding be carried out, if necessary, and may, at his/her discretion, request that the General Superintendence carry it out, indicating the disputed points and specifying the steps to be taken, within thirty (30) days as from the date of the approval order by the General Superintendence.
If not called within fifteen (15) calendar days, the merger approved without restrictions by the General Superintendence may be consummated by the parties.
In other events of recommending approval with restrictions or vetoing the transaction, CADE’s Court shall analyze the case and may (i) uphold the veto or approval with restrictions, upon execution of a Merger Control Settlement – ACC, by means of which antitrust structural and/or conduct remedies shall be provided, which shall be observed, as a condition for the validity and effectiveness of the transaction; or (ii) approve the transaction without restrictions.
Also, within a term of fifteen days as from publication of the decision of the General Superintendence that approves the merger, in the summary or ordinary proceeding, an appeal may be filed with the Administrative Court, which may be brought by interested third parties or, in the case of a regulated market, by the respective regulatory agency.
Once the case has been tried on the merits, the act cannot be filed again, nor can it be revised within the scope of the Executive Branch.
2Cade Resolution No. 33/2022. Art. 7 – The decision to classify the request for approval of a merger in the Summary Proceeding is discretionary, and shall be adopted by Cade in accordance with the criteria of convenience and opportunity, based on the experience acquired by the bodies comprising the Brazilian Antitrust System in the analysis of mergers and in the identification of those that have less potential to violate competition. Paragraph 1 – The acts under analysis based on the Summary Proceeding shall be subject to asimplified decision[…]. Paragraph 2 The General Superintendence shall observe a term of thirty (30) days as from filing of the petition or of the amendment thereto, to decide on mergers classified in the Summary Proceeding and which are not reclassified for analysis in the Ordinary Proceeding (emphasis added).
Article 9, paragraphs 4 and 5 Law No. 12.529/2011, as governed by CADE Resolution No. 12/2015, allows any interested party to submit an Inquiry to CADE’s Administrative Court, requesting its understanding on the application of the antitrust legislation to a specific event of fact.
Inquiries may deal with: (i) the interpretation of legislation or CADE’s rules related to merger control, in relation to certain transactions or duly defined de facto situations; (ii) the lawfulness of acts, contracts, business strategies, or conduct of any kind, already initiated by the inquirer; or (iii) the lawfulness of acts, contracts, business strategies, or conduct of any kind, already conceived and planned, but not yet initiated by the inquirer.
To submit the Inquiry, the inquirer shall observe the requirements set forth in the applicable law, as well as pay the procedural fee, currently in the amount of R$15,000.00, pursuant to article 23 of Law No. 12.529/2011, as amended by Law No. 13.196/15.
27.10. Antitrust Violations
27.10.1. Article 36 of Law No. 12.529/2011.
Article 36 of Law No. 12.529/2011 establishes that a conduct is deemed an antitrust violation whenever it is adopted for the purpose of causing or may cause the following effects, even if these are potential: (i) limit, distort, or in any way harm free competition; (ii) arbitrarily increase the economic player’s profits; (iii) dominate relevant markets for goods and services; and (iv) whenever the economic player exercises its market power in an abusive manner.
The characterization of an antitrust violation occurs regardless of the player’s fault and can be established even if the harmful effects are only potential.
Still in this sense, article 36, paragraph 3, items III to XI presents a non-exhaustive list of conducts carried out unilaterally, pursuant to article 36, item X of the Antitrust Law.
This is a non-exhaustive list, since there is the possibility of certain unilateral conducts that, irrespective of not conforming to those provided for in article 36, paragraph 3, items III to XI, may fall under the items of the head provision of article 36. The most common unilateral conducts found in the practice of Antitrust Law are:
- creation of mechanisms to exclude competitors:
- resale price fixing;
- territorial and customer base restrictions;
- exclusivity agreements (contracts/clauses);
- refusal to trade;
- tying arrangements;
- price discrimination;
- market closing,
At the administrative level, conducts characterized as antitrust violation are subject to imposition of the following penalties:
- Company: fine from one tenth percent (0.1%) to twenty percent (20%) of the gross revenue of the company, group or conglomerate obtained in the last fiscal year prior to the initiation of the administrative proceeding, in the field of business activity in which the violation occurred, which shall never be less than the benefit obtained, whenever it can be estimated.
CADE may also consider the total revenue of the company or group of companies, when it does not have the revenue amount in the field of business activity in which the violation occurred or whenever it is presented incompletely and/or not demonstrated in an unequivocal and reputable manner.
- Other individuals or legal entities governed by public or private law, associations of entities or persons organized de facto or de jure, even if temporarily, with or without legal personality, which do not carry out business activities, and it is not possible to use the criterion of the value of the gross revenue: the fine shall be between fifty thousand Reais (R$50,000.00) and two billion Reais (R$2,000,000,000.00);
- Managers, directly or indirectly responsible for the offense committed, upon proof of their negligence or willful misconduct, a fine from one percent (1%) to twenty percent (20%) of that imposed on the company or legal persons or entities, in the cases described above.
If it is not possible to use the criterion of gross revenue value, the fine for other individuals or legal entities governed by public or private law, as well as any associations of entities or persons organized de facto or de jure, even if temporarily, with or without legal personality, which do not carry out business activities, may vary between R$50,000.00 and R$2,000,000,000.00.
In the case of recurrent violation, the imposed fines shall be doubled.
Without prejudice to the pecuniary penalties above, the following penalties may be imposed individually or cumulatively depending on the seriousness of the facts or the general public interest:
- Publication in a newspaper indicated in the decision, of a summary of the adverse judgment, for two (2) consecutive days, from one (1) to three (3) consecutive weeks;
- Prohibition of entering into agreements with official financial institutions and participating in competitive biddings for acquisitions, disposals, execution of works and services, concession of public services, in the federal, state, municipal, and Federal District government, as well as in indirect government entities, for a term not less than five (5) years;
- Registration of the offender in the National Consumer Protection Register;
- Recommendation to the proper government agencies that: (a) a compulsory license of the intellectual property right owned by the offender be granted, when the violation is related to the use of that right; and (b) the offender is not granted the right to pay federal taxes owed by the offender in installments under a payment plan, or that tax incentives or public subsidies be cancelled in whole or in part;
- Company spin-off, transfer of corporate control, sale of assets, or partial cessation of activities;
- Prohibition of trading in one’s own name or as a representative of a legal entity, for a term of up to five (5) years.
Law No. 12.529/2011, as amended by Law No. 14.470/2022, also provides on the right to double compensation for those that prove that they have been harmed by conduct characterized as an antitrust violation, in return for damage suffered as a result of antitrust violations provided for in items I and II of paragraph 3 of art. 36 of said Law, without prejudice to the sanctions imposed in the administrative and criminal spheres.
In the criminal sphere, such conduct is defined in article 4 of Law No. 8.137/1990, which provides on crimes against the tax authorities, the economy, and against consumer relations, such as Crime Against the Economic Order, with a penalty ranging from two (2) to five (5) years of imprisonment and fine.
The following factors shall be taken into account when imposing penalties: (i) the player’s willful misconduct and the seriousness of the violation; (ii) the offender’s good faith and the advantage gained/intended by the offender; (iii) consummation of the violation; (iv) the degree of injury or danger of injury to free competition, the national economy, consumers, or third parties; (v) the negative economic effects produced in the market; (vi) the size of the companies or the economic situation of the offender; and (vii) recidivism.
27.10.3. Cease and Desist Agreement
In certain situations in which there are conducts that constitute an antitrust violation, in the presence of strong elements capable of sentencing the investigated players, the instrument of Cease and Desist Agreement appears.
It is an instrument to be entered into between the parties involved in the violation and CADE, as a means of guaranteeing important benefits for those that adhere thereto, and the contribution before CADE, to allow the investigation and punishment of other offenders not initially identified.
The Cease and Desist Agreement is provided for in article 85 of the Antitrust Law, as follows:
Art. 85. In the administrative proceedings mentioned in items I, II, and III of art. 48 of this Law, Cade may take a cease and desist agreement from the defendant related to the violation under investigation or its harmful effects, whenever, in a judgment of convenience and timeliness, duly substantiated, Cade understands that it serves the interests protected by law.
The provisions of said article 85 shall also be complemented with the provisions of CADE’s Internal Rules (RICADE), especially in its section III, which presents the procedures and requirements for submission of the application by the defendants, the process of negotiation and judgment of the final proposal, pursuant to articles 179 to 183 of RICADE.
27.11. Judicial Review of CADE Decisions
CADE is the last instance, at the administrative level, responsible for the final decision on antitrust matters. However, CADE’s decisions may be challenged in court, as provided for in art. 5, XXXV of the Federal Constitution, coupled with art. 109, I.
In actions in which CADE appears as plaintiff or defendant or as assistant or opponent, the court with competent jurisdiction is the Judiciary Section of the Federal District. On the other hand, in cases involving the judicial enforcement of CADE’s decisions, imposing a fine or imposing an obligation to do or not to do, CADE may choose to bring the action at the place of domicile of the judgment debtor.
Please note that CADE’s decisions that impose a fine are instruments enforceable out of court, in accordance with art. 93 of Law No. 12.529/2011, and the fines shall be entered as overdue tax liability with the Federal Government.
Despite the time spent analyzing a given transaction/conduct in the administrative sphere, the proceedings can also last for years in the judicial sphere, due to the Justice system moving slowly.
27.12. Relationship between the SBDC and Other Institutions
The SBDC works together with federal bodies and regulatory agencies, which are responsible for certain sectors of the economy, mainly infrastructure and public services.
An example of that is found in the cooperation agreement signed in 2014 between CADE and the Office of the Federal Controller General (CGU), aimed at technical and operational cooperation in relation to the repression of fraud in competitive biddings.
There are several other agreements signed between CADE and government agencies, which include those signed with the Federal Government, the National Bank for Economic and Social Development – BNDES, the National Complementary Health Agency (ANS), the National Petroleum, Natural Gas, and Biofuels Agency (ANP), the Association of Federal Judges (AJUFE), the National Health Surveillance Agency (ANVISA), the Public Prosecutors’ Office of several Brazilian states, the INPI – National Institute of Industrial Property, ICC Brasil – Brazilian Committee of the International Chamber of Commerce, and SNC – National Consumer Office.
CADE also has international agreements with several nations, in addition to Cooperation Treaties and Protocols with MERCOSUR countries. The SBDC also takes part in several international meetings to exchange antitrust policy experiences, such as the OECD (Organization for Economic Cooperation and Development) and ICN (International Competition Network).
27.13. Incentive to Compliance Programs
In view of the risks associated with antitrust violations, the adoption of compliance programs has been encouraged, including by CADE, which published the “Guide – Compliance Programs – Guidelines on Structuring and Benefits of Adopting Antitrust Compliance Programs”, establishing guidelines for companies regarding these programs, specifically in the antitrust area.
There is no single model for compliance programs, which can be more or less complex, depending on the size, market position, activities of each company, among other factors.
Among the benefits of these programs, the following can be mentioned: prevention of risks of violations of the law, early identification of problems, recognition of illegalities in other organizations (competitors, suppliers, distributors, or customers), reputational benefit, awareness of staff, and reduction of costs and contingencies.
Authors: Sonia Marques Döbler, Fabiana Nitta and Graziella Dell’Osa
Sonia Marques Döbler Advogados
Rua Dona Maria Paula, 123 – 19º andar – Ed. Main Offices
01319-001 São Paulo – SP
Tel.: (11) 3105-7823
Fax: (11) 3105-5540
E-mail: [email protected]
Internet: www.smda.com.br / www.dobler.com.br
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Areas of expertise: Business Law, including Antitrust, Consumer Relations, Contracts, Corporate Law, M&A, International Negotiations, Civil, Tax and Labor Corporate and Litigation and Foreign Investment.